FairPoint Communications 2012 Annual Report Download - page 147

execution, Executive shall not be entitled to any of the Severance Benefits. Further, to the extent that any of the Severance Benefits constitutes “nonqualified
deferred compensation” for purposes of Section 409A of the Code, any payment of any amount or provision of any benefit otherwise scheduled to occur prior
to the sixtieth (60th) day following the date of Executive's termination of employment hereunder, but for the condition on executing the release of claims as set
forth herein, shall not be made until the first regularly scheduled payroll date following such sixtieth (60 th) day, after which any remaining Severance Benefits
shall thereafter be provided to Executive according to the applicable schedule set forth herein. For the avoidance of doubt, in the event of a termination due to
Executive's death or Disability, Executive's obligations herein to execute and not revoke the release of claims may be satisfied on his behalf by his estate or a
person having legal power of attorney over his affairs.
Section 9. Non-Interference Agreement .
As a condition to receipt of the benefits set forth under this Agreement, to which Executive acknowledges are incremental to the benefits and
compensation available to Executive immediately prior to the Commencement Date, Executive shall have executed and delivered to the Company a non-
interference agreement (the “Non-Interference Agreement”) in the form of the Confidentiality, Non-Interference and Invention Assignment Agreement attached
hereto as Exhibit A. The parties hereto acknowledge and agree that this Agreement and the Non-Interference Agreement shall be considered separate contracts.
Section 10. Representations and Warranties of Executive.
Executive represents and warrants to the Company that:
(a) Executive is entering into this Agreement voluntarily and that his employment hereunder and compliance with the terms and
conditions hereof will not conflict with or result in the breach by him of any agreement to which he is a party or by which he may be bound;
(b) Executive has not violated, and in connection with his employment with the Company will not violate, any non-solicitation,
non-competition, or other similar covenant or agreement of a prior employer by which he is or may be bound; and
(c) in connection with his employment with the Company, Executive will not use any confidential or proprietary information he
may have obtained in connection with employment with any prior employer.
Section 11. Taxes.
The Company may withhold from any payments made under this Agreement all applicable taxes, including but not limited to income,
employment, and social insurance taxes, as shall be required by law. Executive acknowledges and represents that the Company has not provided any tax
advice to him in connection with this Agreement and that he has been advised by the Company to seek tax advice from his own tax advisors regarding this
Agreement and payments that may be made to him pursuant to this Agreement, including specifically, the application of the provisions of Section 409A of the
Code to such payments.
Section 12. Mitigation; Company Recovery Rights .
Executive shall not be required to mitigate the amount of any payment provided pursuant to this Agreement by seeking other employment or
otherwise, and the amount of any payment provided for pursuant to this Agreement shall not be reduced by any compensation earned as a result of Executive's
other employment or otherwise. Any payment pursuant to this Agreement shall, however, be subject to any rights the Company may have under Section 304(b)
of the Sarbanes-Oxley Act of 2002 or Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.
Section 13. Additional Section 409A Provisions .
Notwithstanding any provision in this Agreement to the contrary:
(a) Any payment otherwise required to be made hereunder to Executive at any date as a result of the termination of Executive's
employment shall be delayed for such period of time as may be necessary to meet the requirements of Section 409A(a)(2)(B)(i) of the Code (the “ Delay
Period”). On the first business day following the expiration of the Delay Period, Executive shall be paid, in a single cash lump sum, an amount equal to the
aggregate amount of all payments delayed pursuant to the preceding sentence, and any remaining payments not so delayed shall continue to be paid pursuant
to the payment schedule set forth herein.
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